Employee Appeals and Grievances



Employee Appeals and Grievances

|Policy |It is the policy of the State Personnel Commission that a grievance procedure shall exist to allow for the prompt |

| |and orderly resolution of problems and differences arising between the supervisor and the employee. |

| | |

| |Each agency shall establish a grievance procedure which includes the minimum requirements as outlined in this |

| |policy. The agency may also elect to establish an alternative dispute resolution (ADR) procedure as an |

| |alternative to the grievance procedure. |

|Objectives |In establishing this policy, the State Personnel Commission seeks to achieve the following objectives: |

| |Assure employees can get their problems or complaints considered rapidly, fairly and without fear of reprisal, |

| |Take steps to ensure costs to process grievances are contained, and |

| |Resolve workplace issues and problems efficiently and cost effectively. |

|Definitions | |

|Term |Definition |

|Agency |A department, university, office, board or commission |

|Alternative dispute resolution |An informal non-adversarial procedure for resolving a grievance without using |

|(ADR) |the formal internal agency grievance procedure |

|Alternative dispute resolution |The written agreement resulting from the successful resolution of a grievance | |

|agreement |through use of an ADR procedure | |

|Career State employee |A State employee who meets the requirements specified in the State Personnel |

| |Act |

|Contested case issues |Issues which are defined in the State Personnel Act as being appealable to the |

| |State Personnel Commission |

|Final agency decision (FAD) |The written decision rendered by the agency head or designee resulting from an |

| |internal grievance or a failed ADR |

|Neutral party |An individual or body of persons who meet the requirements for conducting an |

| |ADR procedure under the rules of the State Personnel Commission |

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Employee Appeals and Grievances, Continued

|Covered Issues | |

|Covered Persons |Grievable Issues |

|Career State employees or | Dismissal, demotion, or suspension without pay without just cause |

|former career State employees |Denial of promotion due to failure to post |

| |Failure to give promotional priority over outside applicants |

| |Failure to give RIF reemployment consideration |

| |Failure to give policy-making/confidential exempt status priority reemployment |

| |consideration |

| |Failure to follow systematic procedures in reduction in force (not alleging |

| |discrimination) |

| |Denial of veteran’s preference in connection with RIF |

|Any State employee or former | Denial of request to remove inaccurate or misleading information from personnel |

|State employee |file |

| |Policy-making designation |

| |Discrimination in denial of promotion, transfer, or training; or retaliation in |

| |selection for demotion, RIF or termination |

|Any applicant for State | Denial of veteran’s preference in initial State employment |

|employment |Denial of employment on the basis of illegal discrimination |

|Any State employee | A false accusation about political threats or promises |

|Advisory Note: The list of covered persons above is based on those defined by the State Personnel Act as having|

|the right of appeal. No agency can prevent these covered persons from filing a grievance based on the issues |

|listed above. However, agencies may also permit grievances to be filed that are based on issues other than |

|those listed. These grievances would not be appealable to the State Personnel Commission. The agency grievance|

|procedure must provide information on what other issues that are grievable, how to file a grievance for those |

|issues and the time frames which apply. |

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|Discrimination Special |An employee alleging illegal discrimination has the right to bypass the internal agency grievance procedure and/or|

|Provisions |ADR procedure and appeal directly to the State Personnel Commission. In order to appeal to the Commission, the |

| |employee must file a petition for a contested case hearing with the Office of Administrative Hearings within 30 |

| |calendar days after receipt of notice of the alleged discriminatory action. |

| | |

| |However, if the employee chooses to use the agency’s internal grievance procedure, the employee must appeal the |

| |alleged discriminatory act within the time frames set by the agency grievance procedure. |

| | |

| |Exception for Unlawful Workplace Harassment - An employee alleging unlawful workplace harassment which results in |

| |denial of employment, promotion, transfer, or training, or in selection for demotion, RIF, or termination, shall |

| |have the right to bypass any step involving discussions with or review by the alleged harasser. |

| | |

| |Advisory Note: Because unlawful workplace harassment is a form of sex discrimination, the employee also has the |

| |right to bypass the agency grievance procedure and appeal directly to the State Personnel Commission. |

|Leave |To prepare for participation in the internal agency grievance procedure or an ADR procedure, an employee shall be |

| |allowed up to a maximum of 8 hours of leave time off from the employee’s duties. This leave is granted without |

| |loss of the employee’s pay, vacation or other time credits. |

| | |

| |For participation in contested case hearings, or other administrative hearings, the employee may request necessary|

| |time away from work without use of vacation or other time credits. This request is subject to the supervisor or |

| |personnel officer’s approval. The supervisor or personnel officer determines if the leave is necessary and |

| |reasonable. Documentation of the time required by the presiding official may be requested by the supervisor |

| |before leave approval is granted. |

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AGENCY GRIEVANCE PROCEDURE

|Minimum Requirements |The following are the minimum requirements for an agency grievance procedure to be approved by the State Personnel|

| |Commission: |

| | |

| |The agency grievance procedure shall require an employee not alleging unlawful discrimination to first discuss the|

| |problem with the supervisor. |

| |The agency grievance procedure shall state the issues which, in addition to those listed in the State Personnel |

| |Act, can be grieved at the agency level. |

| |After the discussion with the immediate supervisor or other appropriate supervisor where the immediate supervisor |

| |has no authority over the action being grieved, the employee shall have the option at one or more of the |

| |subsequent steps, to present the grievance orally and to present to a reviewer or reviewers outside of the chain |

| |of command, e.g., hearing officer or employee grievance committee. |

| |All decisions issued by the agency after the discussion with the immediate supervisor shall be in writing. |

| |The employee shall have the right to challenge whether the person, or body of persons outside of the chain of |

| |command review level, can render an unbiased recommendation. The agency procedure shall establish a process for |

| |the challenge as well as the procedure for selection of a replacement reviewer, when necessary. |

| |The agency grievance procedure shall outline the ways of notifying all existing employees and new hires of any |

| |change to the agency grievance procedure, no later than 30 days prior to the effective date of the change. |

| |The effective date of the agency grievance procedure and any changes to it shall be stated in the procedure. |

| |The agency shall set up time limits for appeal and for the employee and the agency to respond to each other during|

| |the grievance procedure. The agency may not set any time limit for itself that is more than twice the time limit |

| |established for employees. An employee filing a grievance shall do so not later than 15 calendar days after the |

| |last incident for which the employee is filing the grievance unless the internal agency procedure provides for a |

| |longer period. |

| |Neither party to the grievance can be represented by attorneys or other persons during the internal agency |

| |grievance procedure or ADR procedure. |

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|Settlements |If a grievance is settled and the settlement requires a personnel transaction to be processed, except where the |

| |only personnel action is the substitution of a resignation for a dismissal, the approval of the State Personnel |

| |Director is required. |

| |AND |

| |If the settlement involves an exception to any State Personnel Commission policy, the approval of the State |

| |Personnel Commission is also required. |

|Appeal of Final Agency |The agency shall issue the final agency decision (FAD) in writing. If the employee has the right to appeal the |

|Decision (FAD) |decision, the employee shall be informed: |

| |that appeal to the State Personnel Commission (SPC) must be filed within 30 days after the employee receives the |

| |FAD or after the action which triggers the right of appeal directly to the SPC, and |

| |that the appeal to the SPC is made by filing a petition for a contested case hearing with the Office of |

| |Administrative Hearings. The address is: |

| |Office of Administrative Hearings |

| |P.O. Drawer 27447 |

| |Raleigh, North Carolina 27611-7447 |

|Time Limits |A final agency decision (FAD) must be issued within a reasonable period of time from the date the grievance is |

| |filed or the employee may, if eligible, appeal to the State Personnel Commission without receiving a FAD. |

| | |

| |For cases involving discharge or demotion of a career State employee for disciplinary reasons, the reasonable |

| |period of time is 90 days from the filing of the grievance to the issuance of the FAD. For all issues except |

| |demotion or dismissal, a reasonable period of time for an employee to receive a FAD is 120 days from the time the |

| |grievance was filed. The employee and the agency may mutually agree to extend the time in either case. |

| |Advisory Note: If the employee cannot obtain the FAD within a reasonable period of time, the employee’s right of |

| |appeal shall be governed by G.S. 126-34.1 and G.S.150B-23(f). |

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ALTERNATIVE DISPUTE RESOLUTION (ADR) PROCEDURE

|Purpose of ADR procedure |The purpose of the ADR procedure is to provide an informal, non-adversarial way of resolving grievances through |

| |the use of techniques such as mediation. It is hoped that the ADR process will require less time than the formal |

| |procedure. |

|Agency Option |Agencies have the option of adopting an alternative dispute resolution (ADR) procedure as a part of the agency |

| |grievance procedure. |

| | |

| |The ADR procedure is an alternative to the grievance procedure for resolving contested case issues. However, the |

| |agency may also elect to allow use of the ADR procedure for non-contested case issues. |

|Agency/ |Any employee who has filed a grievance may request to use the ADR procedure if the agency has adopted one. Use of|

|Employee Agreement |the ADR procedure requires the agreement of both the employee and the agency. |

|Minimum Requirements of |The following are the minimum requirements for approval of an agency ADR procedure by the State Personnel |

|the ADR Procedure |Commission: |

| | |

| |1. The ADR procedure shall state the point or points at which the employee may request use of the ADR procedure |

| |for resolving an issue. |

| | |

| |2. The agency shall use a qualified neutral party to conduct the ADR procedure. The neutral party shall meet |

| |certain qualifications to be eligible. The qualified neutral party shall: |

| |Have no personal, financial, or business interest or relationship to anyone participating in the dispute or to the|

| |dispute itself, except that employment by the agency alone does not preclude service as a neutral party. |

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|Minimum Requirements of | Have no prior knowledge of or have conducted no prior review of the evidence and/or facts concerning one of the |

|ADR (continued) |participants or of the merits of the dispute itself that would impact the decision rendered by the neutral party; |

| |Complete 40 hours of training in basic mediation or in another ADR medium; and |

| |Complete the Office of State Personnel discipline/dismissal and grievance training. |

| | |

| |3. The ADR procedure shall include the following provisions: |

| |Any employee may request to use the ADR procedure to resolve issues made grievable by the agency. Other parties |

| |to the dispute shall be notified in writing of the request, |

| |The circumstances under which the ADR agreement may be binding or non-binding, and |

| |That neither party can be represented by attorneys or other persons as a part of the ADR procedure. |

|How does an employee |The employee has the right to request the use of the agency ADR procedure to resolve the dispute at any point in |

|access the ADR procedure?|the process designated by the agency grievance procedure. |

| | |

| |The minimum steps to enter the ADR procedure are as follows: |

| |The employee requests to use the ADR procedure; |

| |The employee and the designated agency representative sign the ADR consent form; |

| |The employee and the designated agency representative agree on a neutral party to conduct the ADR procedure; and |

| |If the employee and designated agency representative fail to agree on a neutral party to conduct the ADR procedure|

| |within 10 days after signing the ADR consent form, the ADR procedure will be considered abandoned and the dispute |

| |will return to the appropriate level of the formal grievance procedure. |

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|What happens when |When a resolution is reached through the ADR procedure, the following shall occur: |

|resolution is reached |The employee and the designated agency representative sign the ADR resolution agreement. |

|through the ADR |Each party receives a copy of the signed ADR resolution agreement within 5 working days after the end of the ADR |

|procedure? |procedure. |

| |The ADR resolution agreement shall be maintained in an agency file for not less than 3 years. |

| |Advisory Note: ADR resolution agreements are considered public documents under G.S. 132-1.3. |

| |The ADR agreement does not transfer to another agency should the employee transfer. |

| |Advisory Note: Any resolution achieved through the ADR procedure, to the extent that it involves a grievance or a|

| |contested case issue, is to be treated as a settlement/consent agreement and, as such, is subject to approval by |

| |the State Personnel Director and/or the State Personnel Commission as outlined in the above section entitled |

| |“Settlements.” |

|What happens if the |If the ADR fails to resolve the issue, the selected neutral party prepares a summary of the issues and submits |

|dispute is not resolved |them to the agency head or designee for a final decision. Within 5 days of notification of failure, a FAD must be|

|through the ADR? |issued. This FAD is appealable as provided in G.S. 126-34.1. |

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|What happens to the other|Except for the resolution agreement itself, all other documents generated during the conduct of the ADR procedure |

|documents used in the ADR|and any communications shared in connection with the ADR procedure are not admissible as evidence in any |

|procedure? |proceedings subsequent to the ADR procedure. Examples of these documents are: |

| |Request to use the ADR procedure |

| |Notification of failure of the ADR procedure |

| |The elements or components of any discussions, sessions, hearings, investigations, or other activities generated |

| |in connection with the ADR procedure |

RESPONSIBILITIES

|Agency Responsibilities |Each agency shall: |

| | |

| |Create and maintain a grievance policy which is in compliance with the Office of State Personnel policy and shall:|

| |File the agency grievance procedure by January 1 of each even-numbered year for approval by the State Personnel |

| |Commission, |

| |OR |

| |File any modification(s) since the last approved procedure prior to the changes becoming effective, |

| |OR |

| |Submit a certified statement that no changes have been made to the agency grievance procedure since the last |

| |approved procedure. |

| |Include in its procedure the effective date of the procedure and the effective date of any changes to the |

| |procedure. |

| |Submit the procedure to the State Personnel Commission at least one month before the meeting at which approval is |

| |sought. |

| |Continuously evaluate the agency grievance procedure’s effectiveness in achieving stated goals. |

| |Submit a grievance report semiannually or as requested by the Office of State Personnel. These reports are due |

| |the first business day of January and July. The report shall be submitted in the format specified by the Office |

| |of State Personnel. |

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|Office of State Personnel|The Office of State Personnel shall: |

|Responsibilities | |

| |Review each proposed grievance procedure for conformity with applicable laws, rules, policies and contemporary |

| |employee relations practices. |

| |Present the procedure to the State Personnel Commission for consideration and approval at its next available |

| |scheduled meeting. |

| |Provide consultation and technical assistance to the agencies in developing materials for training and/or |

| |communicating with supervisors and employees, and assist, as requested, in training grievance committees. |

| |Review grievance reports submitted by the agencies and forward to the State Personnel Director. |

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